Barristers suffering post-LASPO, says survey

More than half of barristers conducting civil litigation have seen their income fall since implementation of the Jackson reforms, Bar Council research has found.

Many barristers have also experienced problems with the transition from pre-Jackson conditional fee agreements (CFAs) to new-style CFAs.

The preliminary results of the Bar Council’s survey, undertaken to assess the impact of the first year of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), showed that legal aid barristers have fared even worse, especially family specialists. Some 716 people took part, 90% of whom were barristers.

In all 53% of civil litigators reported that their fee income had gone down since 1 April 2013 (7% said it had risen), with 45% saying case volumes had reduced too.

Across all civil work, 70% of barristers had seen an increase in litigants in person, a figure that rose to 88% in the family courts. Most felt that court delays were also on the rise.

Getting on for half of civil barristers (43%) said they had had trouble with the CFA transitional provisions, with the most common situation seeing the solicitor instructed pre-LASPO and counsel afterwards. The other main pinch-point came when the instructing solicitor wanted to assign a CFA of a counsel signed up under the pre-LASPO arrangements.

Just over a quarter of barristers (27%) reported an increase in general interest in ‘non-traditional’ funding arrangements, such as fixed fees, deferred payment until disposal of property or capital assets, pro bono assessment of risk, third-party funding and damages-based agreements.

The findings also revealed that 61% of all respondents noted an increase in the number of lay clients saying they had difficulty accessing legal advice and representation. Similarly, 60% reported an increase in the number of lay clients requesting free advice and representation.

While the majority of practitioner respondents had no immediate plans to leave the Bar, a significant minority were considering a move to judicial or other positions before 2015. Many respondents indicated that they are actively considering whether they have a long-term future at the Bar, and that the effects of LASPO had caused them to think about the viability of their career at the Bar.

The survey was, however, hedged by the caveats that it is too early to fully understand the impact of LASPO and that the Act “was not implemented in a vacuum”.

Bar Council chairman Nicholas Lavender QC said: “The results will help to guide the formulation of policy and provide some strong messages to government, as we approach the General Election, about how LASPO has affected access to justice, especially on those who are most vulnerable.

“Unsurprisingly, the preliminary results from the survey confirm the concerns we raised with the government some time ago: a significant increase in litigants-in-person, more delays in court, and growing difficulty for individuals in accessing legal advice and representation.”

Mr Lavender said that while it may be too early to understand the full impact of the changes, it is not too early to look at options for improving the current situation.

“These include simplifying court processes to ensure that litigants-in-person are able to fulfill the most basic administrative requirements of the court process, and significantly increasing advertising and promotion of what legal aid services remain available and how they can be accessed.

“There needs to be a comprehensive post-implementation review of LASPO, together with an assessment of the effects of the combination of changes that are occurring in civil and family justice. Such a review would also help to identify the (no doubt, unintended) consequences of policy change and the effects of cost shifting, which may require further attention.

The survey was undertaken with the assistance of Professor Graham Cookson from The University of Surrey. The final report is expected to be published in September.

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